ITO, Ward - 38(4), Kolkata, Kolkata V. Sankar Nath Chatterjee, Kolkata

ITA 1366/KOL/2010

• Counselvise Citation: 136623514 RSA 2010
• Duration Of Justice: 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2011
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 31-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 01-07-2010
• Court: TRIBUNAL
• Department Lawyers: H N SINGH
• Keywords: Tax effect
• Section: 260A

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH A, KOLKATA () BEFORE , ,, , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND . .. . ! ! ! !. .. . , ,, , '# SHRI C.D.RAO, ACCOUNTANT MEMBER $ $ $ $ / ITA NO.1366/KOL/2010 %& '(/ ASSESSMENT YEAR : 2006-07 (*+ / APPELLANT ) I.T.O., WARD-38(4), KOLKATA - % - - VERSUS - . (-.*+/ RESPONDENT ) SANKAR NATH CHATTERJEE, KOLKATA (PAN: AEXPC 3543 B) / 01 / 01 / 01 / 01 /C.O.NO.100/KOL/2010 $ $ $ $ / A/O ITA NO . 1366 /KOL/2010 %& '(/ ASSESSMENT YEAR : 2006-07 (*+ / APPELLANT ) SANKAR NATH CHATTERJEE, KOLKATA (PAN: AEXPC 3543 B) - % - - VERSUS - . (-.*+/ RESPONDENT ) I.T.O., WARD-38(4), KOLKATA *+ 2 3 '/ FOR THE DEPARTMENT : SHRI H.N.SINGH -.*+ 2 3 '/ FOR THE ASSESSEE: NONE '4 / ORDER 567 567 567 567 PER BENCH THE APPEAL FILED BY THE REVENUE IS AGAINST THE ORDE R DATED 16.03.2010 OF THE CIT (A)-XXIV, KOLKATA PERTAINING TO THE ASSESSMENT YEAR 2006-07 AND THE CROSS 2 OBJECTION FILED BY THE ASSESSEE IS AGAINST THE ORDE R OF THE CIT [A]-XXIV, KOLKATA, PERTAINING TO THE ASSESSMENT YEAR 2006-07. FOR THE SAKE OF CONVENIENCE BOTH THE APPEALS ARE DISPOSED OF TOGETHER BY A CONSOLIDATED ORDER. 2. IN THIS CASE THE REVENUE IS IN APPEAL DISPUTING THE DELETION OF RS.7,50,000/- MADE BY THE AO AFTER ADMITTING FRESH EVIDENCE WITHO UT PROVIDING ANY OPPORTUNITY TO A.O. IN VIOLATION OF RULE 46A. 3. AT THE TIME OF HEARING NO ONE APPEARED ON BEHAL F OF THE ASSESSEE. THE LD. DEPARTMENTAL REPRESENTATIVE APPEARING ON BEHALF OF THE REVENUE AT THE OUTSET SUBMITTED THAT IN THIS CASE THE TAX EFFECT INVOLVED IS RS.3 LAKHS AND SINCE THE TAX IS LESS THAN RS. 3 LAKHS AS PER CBDT INSTRUCTION NO.3/2011( F.NO.279/MISE/142/2007-ITJ) DATED 9.2.2011 WHEREIN IT HAS BEEN ENHANCED THE LIM ITS FOR FILING OF APPEALS BEFORE THE TRIBUNAL TO RS.3 LAKHS THE REVENUES APPEAL IS LIAB LE TO BE DISMISSED IN LIMINE. IN VIEW OF THE LATEST ORDER OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS DELHI RACE CLUB IN ITA NO.128/2008 WHEREIN THE HONBLE HI GH COURT OPINED THAT THAT THE CIRCULAR WOULD ALSO APPLY TO THE PENDING CASES. THE REFORE HE REQUESTED TO DISMISS THE REVENUE. THE COPY OF THE HONBLE DELHI HIGH COURT I S PLACED ON RECORD. 4. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIAL ON RECORD KEEPING IN VIEW OF THE FACT THAT THE LD. DR COULD N OT GIVE CONTRARY JUDGEMENT TO THE ONE ON WHICH THE LD. COUNSEL FOR THE ASSESSE HAS RE LIED WHEREIN THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS DELHI RACE CLUB IN ITA NO.128/2008 DATED 03.03.2011 HAS HELD AS UNDER :- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS R S.4,65,860/-. AS PER RECENT GUIDELINES OF THE CBDT, APPEAL IN THOSE CASES WHERE THE TAX EFFECT IS LESS THAN 10 LACS, ARE NOT BE ENTERTAINED. THIS COURT IN THE CASE OF COMMISSIONER OF INCOME TA X-III V. M/S. P.S.JAIN AND CO. BEING NO.179/1991 DECIDED ON 2 ND AUGUST, 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDING CASES. 4.1. ADMITTEDLY THE TAX PAYABLE IN RESPECT OF GROUN DS OF APPEAL BY THE DEPARTMENT IS LESS THAN RS.3 LAKHS AND AS PER REVISED INSTRUCT ION OF THE CBDT NO. 3 DATED 3 9.2.2011 WHEREIN THE CBDT HAS REVISED THE FILING LI MITS FILED BEFORE THE TRIBUNAL, HIGH COURT AND SUPREME COURT AS UNDER :- BEFORE THE INCOME TAX APPELLATE TRIBUNAL : RS. 3 L AKHS, APPEALS U/S 260A OF THE IT ACT BEFORE THE HONBLE HIGH COURT : RS.10 LAKHS AND BEFORE THE HONBLE SUPREME COURT : RS.25 LAKHS SINCE IN THE PRESENT CASE THE ABOVE REVISED INSTRUC TION IS WELL APPLICABLE IN VIEW OF THE HONBLE DELHI HIGH COURT (SUPRA) HENCE IN OUR OPINI ON THE REVENUES APPEAL IS NOT MAINTAINABLE IN VIEW OF THE SAID CIRCULAR OF THE CB DT. 4.2. WE FURTHER FIND THAT IT IS A SETTLED LAW THAT THE CIRCULARS ISSUED BY CBDT ARE BINDING ON THE REVENUE. THIS POSITION WAS CONFIRMED BY THE APEX COURT IN THE CASE OF COMMISSIONER OF CUSTOMS VS INDIAN OIL CORPORATIO N LTD. REPORTED IN 267 ITR 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DECISI ONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THA T WHEN A CIRCULAR ISSUED BY THE BOARD REMAINS IN OPERATION THEN THE REVENUE IS BOUN D BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRARY T O THE TERMS OF THE STATUTE. THE APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRA RY TO THE CIRCULAR ISSUED BY THE CBDT INSTRUCTION NO.3 DATED 9.2.2011. 4.3. IN VIEW OF THE ABOVE, WE HOLD THAT THE APPEAL FILED BY THE DEPARTMENT, AGAINST THE IMPUGNED ORDER OF THE LD. CIT(A), IS CONTRARY T O THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEAL FILED BY THE DEPA RTMENT IS DISMISSED IN LIMINE . 5. IN THE CROSS OBJECTION THE ASSESSEE HAS SUPPORTE D THE ORDER OF THE LD. CIT(A). SINCE WE HAVE DISMISSED THE REVENUES APPEAL IN LIM INE THE CONSEQUENTIAL CROSS OBJECTION IS ALSO BEING TREATED AS DISMISSED IN LIM INE. 4 6. IN THE RESULT, THE APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.05.2011. SD/- SD/- , ,, , MAHAVIR SINGH, JUDICIAL MEMBER . .. . ! ! ! !. .. . , ,, , '# '# '# '# , C.D.RAO, ACCOUNTANT MEMBER. ( (( (!# !# !# !#) )) ) DATE: 31.05.2011. '4 2 -0 8'0'9- COPY OF THE ORDER FORWARDED TO: 1. SHRI SHANKAR NATH CHATTERJEE, 27/1A, BIDHAN SARANI, KOLKATA-700006. 2 THE I.T.O., WARD-38(4), KOLKATA 3. THE CIT, 4. THE CIT(A)-CENTRAL-XXIV, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA .0 -/ TRUE COPY, '4%>/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)